A year ago this week the Ministry of Justice closed its call for evidence that reviewed bailiff reforms. Despite overwhelming evidence of the need for reform of the industry, the only news to emerge from the government since then is an announcement about making body-worn cameras mandatory.
As we and our partners in the Taking Control campaign continue to call for independent regulation of the industry amongst other much needed changes, here are a few thoughts on this announcement – and why the use of body-worn cameras is not nearly enough to tackle the problems that people in financial difficulty are experiencing with bailiffs and bailiff firms.
Is this a good idea?
On the face of it, introducing body-worn cameras for bailiffs might seem like a good idea. It should provide an accurate live record of interactions between the bailiffs and an individual. Recordings ought to help provide evidence in complaints both for individuals to prove their case and for a bailiff to use in their defence. In theory, a recording could be used by an ombudsman, creditors, firms, or trade bodies when deciding a complaint. It may also be useful for firms to ensure they can monitor their staff for compliance and training purposes. So far, so good.
There’s a ‘but’…
While there may be some potential benefits of body-worn cameras, many of the existing problems with how bailiffs collect debts are likely to remain.
We cannot assume that making body-worn cameras compulsory will automatically improve bailiff behaviour and reduce the number of disputed claims. Many firms already use this technology. In the tragic case of Jerome Rogers, as shown in the BAFTA-award winning BBC docudrama Killed by My Debt, the bailiff who visited had a body worn camera.
But issues with threatening and abusive behaviour remain. Indeed, without a regulator to enforce rules and guidance against firms and individual agents, these problems will persist.
Additional problems may include:
- Is the technology open to abuse? Could the technology be used to intimidate people as shown in a recent case from the Local and Social Care Government Ombudsman?
- On a practical level, recordings may be unclear, the sound may not work, or there can be crucial gaps in the recording that mean they cannot be used as evidence.
- There may be variations in how firms use visual and audio recording. Will both be required, and under what circumstances? At the moment, we do not know what is intended here.
- There is a question over how long recordings should be kept. The CIVEA code requires members to retain recordings for a minimum of 28 days. This does not seem to be a long enough period to allow for the likely delays in people being able to obtain specialist advice or make the necessary applications for the data to be disclosed.
- There should be detailed guidance on when enforcement agents should stop recording. However, what if the agent “switches off” the recording at a crucial moment, so a complaint cannot be proven? Where does the burden of proof lie if this is the case?
- How will data protection rules apply to agents? Who is required to handle the data, and store the recordings? Is it the firm or the individual enforcement agent (who is often a self-employed contractor)? All of these questions will need resolving.
What the regulations need to consider
Given these potential issues, any regulations and guidance governing the introduction and use of body-worn cameras will require careful drafting.
- We need clear rules on when recordings should and should not be made at all and under what circumstances recording should be halted (people in vulnerable circumstances, members of the public, family members, children and so on).
- We need rules and guidance to promote good practice to ensure the enforcement agent uses the camera during any interaction with an individual in an appropriate manner. For example, there should be a requirement to have a clock running visibly to avoid any attempts to edit the footage.
- Data processing rules will be required to be clear as to who can access the recordings, and who can request copies of the recordings and under what circumstances.
- There need to be clear rules setting out how third-parties such as individuals, courts, an ombudsman and creditors can access the recordings. It should be a requirement on firms to allow individuals to obtain recordings easily and quickly, free of charge and in a suitable format.
- We need clarity on how long recordings must be retained by each firm or individual self-employed agent, how recordings can be kept securely, and clear rules on deletion of data.
- There should be a set of clear technical requirements for firms to follow setting out the standards on the type of equipment and its capability (e.g. the recording quality, level of audio capacity and so on). Security requirements and the potential for confidential data to be shared inappropriately will require measures such as encryption of data.
- Enforcement agents will need guidance and training on how to use and maintain the equipment.
Nowhere near enough
Even if the regulations address all of these points, a more fundamental question remains around how the use of body-worn cameras will actually make a difference on the ground.
In our view, this measure only adds weight to our calls for an independent regulator – these rules will need a regulator to enforce them, and make sure firms and individual enforcement agents abide by what is required. Ultimately, compulsory body-worn cameras are a drop in the ocean of the fundamental bailiff reforms that are needed to protect people in problem debt from harm.
One year on from the closure of its call for evidence, and as parliamentarians from across the political spectrum have made clear this week, it is time for the government to act.